Ovitsky v. Washington County Victim Assistance et al

Filing 104

ORDER: BSD's motions to strike the SAC and dismiss the FAC 78 and 93 are granted. As a result, plaintiff's motion for default judgment against Jerry Brown 98 , Jerry Brown's motion to quash ineffective service 99 , and J ohn Kitzhaber's motion for joinder in BSD's motion to dismiss 103 are denied as moot. Any motion to amend the FAC is due within 20 days of the date of this opinion and must be filed in accordance with this Court's orders, as well as the federal and local rules of civil procedure; failure to do so will result in automatic denial of that motion and dismissal of this lawsuit with prejudice. See formal order. Copy of this order sent to Pro Se Plaintiff. Signed on 2/3/2014 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ABBY JO OVITSKY,

Case No. 3:12-cv-02250-AA
OPINION AND ORDER

Plaintiff,
v.

STATE OF OREGON, WASHINGTON
COUNTY, WASHINGTON COUNTY
SHERIFF'S DEPARTMENT,
BEAVERTON SCHOOL DISTRICT,
and NEAL EVAN CUTLER,
Defendants.
Abby Jo Ovitsky
6900 S.W. 195th Avenue #133
Beaverton, Oregon 97007
Pro se plaintiff
Naomi Levelle Haslitt
Miller Nash LLP
111 S.W. Fifth Avenue, Suite 3400
Portland, Oregon 97204
Attorney for defendant Beaverton School District
Ellen F. Rosenblum
Attorney General
Michael R. Washington
Senior Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301
Attorneys for defendant John Kitzhaber
Page 1 - OPINION AND ORDER

AIKEN, Chief Judge:
Defendant Beaverton School District ("BSD") moves to dismiss
prose plaintiff Abby Jo Ovitsky's claims pursuant to Fed. R. Civ.
P.

12 (b) ( 6) .

For the reasons set forth below,

BSD' s motion is

granted.
BACKGROUND

Plaintiff suffers from an auditory processing disorder and
uses Relay, a service that allows hearing impaired individuals to
communicate with others.

This service works through an operator,

who reads what the hearing impaired individual types aloud and then
types to the hearing impaired individual what another person speaks
in response.
Over two years ago, on December 13, 2012, plaintiff brought a
lawsuit against Washington County Victim Assistance, the Washington
County

Sheriffs

Department

("WCSD"),

Washington

County

Judge

Michele Rini, the Washington County Circuit Court, and the Juvenile
Justice

Department.

On

January

7,

2013,

the

Court

plaintiff's motion to proceed in forma pauperis ("IFP").

granted
On April

20, 2013, defendants Pat Garrett, Judge Rini, Alan Rappleyea, Lynn
Schroeder,

and WCSD were dismissed from this lawsuit;

the Court

also granted plaintiff leave to amend her complaint.
On May 14, 2013, plaintiff filed her first amended complaint
("FAC") against the State of Oregon
("County~),

WCSD, Neal Cutler Evans, and BSD, alleging disability

discrimination
Disabilities

("State"), Washington County

under

Act

42

("ADA"),

U.S.C.
the

§

1983,

the

Rehabilitation

Americans
Act,

and

with
Oregon

statutory law, at which time she requested appointment of pro bono
counsel.

The FAC is premised, in part, on her son's 2012 juvenile

Page 2 - OPINION AND ORDER

hearing, during which Judge Rini allegedly refused to accommodate
a slowdown of the Relay operation to 60 words per minute;
result,

as a

the parties were speaking too quickly for plaintiff to

listen and understand. 1
On May 28,

2013,

the County filed a motion to dismiss on

behalf of itself and WCSD.
motion to dismiss.

On June 27,

On August 20,

2013,

2013,

the State filed a

this Court granted the

County's and the State's motions without prejudice, and dismissed
WCSD as a defendant from this action with prejudice.

See Ovitsky

v. Oregon ("Ovitsky I"), 2013 WL 4505832 (D.Or. Aug. 20, 2013).
August 22,

2013,

On

plaintiff appealed that decision to the Ninth

Circuit Court of Appeals.
On August 30, 2013, BSD moved to dismiss plaintiff's FAC.

On

September 9, 2013, plaintiff filed a single motion for a "Rule 65
Emergency
requesting

Preliminary
relief

Injunction"

based

on

and

events

"Rule

that

11

Sanctions,"

transpired

between

plaintiff, her son, and BSD from June 2013, through September 2013.
In relevant part, plaintiff sought to prevent a meeting that was
scheduled for later that day to execute a

§

plaintiff's

accommodation

son with

a

FM System as

an

504 plan and provide

hearing impairment, which was diagnosed in June 2013.
the September 9,

for

his

Ultimately,

2013 meeting took place as scheduled,

however,

plaintiff elected not to attend.

1

While difficult to decipher, plaintiff's FAC is also based
on several other discrete factual scenarios that transpired in
2012.
See generally FAC.
These circumstances include, but are
not limited to, a 911 call plaintiff placed with the County and
job applications plaintiff filed with the State; it is unclear
whether and/or how these events relate to her son's juvenile
proceedings.
Page 3 - OPINION AND ORDER

On September 16, this Court denied plaintiff's Fed. R. Civ. P.
11 and Fed. R. Civ. P.
failed

to

65 motion,

confer pursuant

to

finding in part that plaintiff

LR 7-1,

and that

her motion was

premised on the rights of a third-party and events that transpired
after the FAC was filed.
2013 WL 5253162

(D.Or.

See Ovitsky v. Oregon
Sept.

16,

2013).

("Ovitsky II"),

On October 16,

2013,

plaintiff filed an opposition to BSD's motion to dismiss,

based

entirely

on

a

new

factual

scenario

namely,

the

allegedly

discriminatory practices on display during the September 9,
meeting between BSD and her son.

2013

Plaintiff then requested leave to

amend the FAC in order to add her son as a plaintiff and the recent
factual

developments;

counsel

and

class

she

also

sought

certification.

appointment

That

same

of

day,

pro

bono

plaintiff

separately moved to file yet another amended complaint, requesting
identical relief.
On October 18, 2013, the Court denied plaintiff's motion to
amend, with leave to refile in accordance with LR 7-1 and LR 15.
On October 22, 2013, the Ninth Circuit dismissed plaintiff's appeal
for lack of

jurisdi~tion.

On November 18, 2013, without leave from

the Court or consent from the opposing party, plaintiff filed a
second amended complaint ("SAC") against BSD, Jerry Brown, and John
Kitzhaber, alleging claims under 42 U.S.C.
ADA,

42 U.S.C.

§

and Or. Rev. Stat.

§

1983; Title II of the

12132; the Rehabilitation Act,
§

659A.142. 2

2

29 U.S.C.

§

794;

The SAC abandoned several theories

Although she misidentifies the statute in both the FAC and
the SAC, plaintiff's pleadings and opposition indicate that her
Oregon disability discrimination claim is alleged under Or. Rev.
Stat. § 659A.142, the state statute that parallels the ADA.
See
FAC pg. 22; SAC pg. 24-25; see also Quesnoy v. Oregon, 2011 WL
5439103, *1 (D.Or. Nov. 4, 2011).
Page 4 - OPINION AND ORDER

of liability asserted in the FAC and instead focused primarily on
events surrounding the September 9, 2013 meeting.

On December 5,

2013, BSD filed a supplement to its motion to dismiss, addressing
the new allegations raised in the SAC; despite express permission
from the Court, plaintiff did not file a supplemental response to
BSD's updated motion.
STANDARDS OF REVIEW

Where the plaintiff "fails to state a claim upon which relief
can be granted," the court must dismiss the action.
P. 12(b) (6).

To survive a motion to dismiss,

Fed. R. Civ.

the complaint must

allege "enough facts to state a claim to relief that is plausible
on its face."
( 2 007) .

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

For purposes of a motion to dismiss,

the complaint is

liberally construed in favor of the plaintiff and its allegations
are taken as true.
1983).

Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir.

Bare assertions, however, that amount to nothing more than

a "formulaic recitation of the elements" of a claim "are conclusory
and not entitled to be assumed true."
662,

681

(2009).

Ashcroft v. Iqbal, 556 U.S.

Rather, to state a plausible claim for relief,

the complaint "must contain sufficient allegations of underlying
facts" to support its legal conclusions.

Starr v. Baca, 652 F.3d

1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
DISCUSSION

BSD argues that plaintiff's claims should be dismissed on a
number of grounds.
stricken,

Initially, BSD contends that the SAC should be

leaving the

FAC as the dispositive pleading,

because

plaintiff failed to obtain leave of the Court or BSD's consent to
file the SAC.

BSD further notes that, in filing the SAC, plaintiff

Page 5 - OPINION AND ORDER

failed to comply with LR 7-1 and LR 15.

In the alternative,

BSD

asserts that both the FAC and SAC fail to state a claim under 42
U.S.C.

§

1983, Title II of the ADA, the Rehabilitation Act, or Or.

Rev. Stat.
I.

§

659A.142.

Dispositive Pleading
Where, as here, more than 21 days have elapsed since service

of the complaint,

"a party may amend its pleading only with the

opposing party's written consent or the court's leave."
Civ. P. 15(a) (2).

Fed. R.

Pursuant to this subsection, "[t]he court should

freely give leave when justice so requires."

Id.; see also Forsyth

v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir. 1997)

(outlining the

factors to be considered in determining whether a motion to amend
should be granted) .
Plaintiff violated Fed. R. Civ. P. 15(a) (2) when she neglected
to obtain leave from the Court or BSD's consent to add new claims
and defendants.

Further, in direct contravention of this Court's

repeated orders, plaintiff made no attempt to conform the SAC with
the requirements of LR 7-1 or LR 15.
565,

567

See King v. Atiyeh, 814 F.2d

(9th Cir. 1987), overruled on other grounds by Lacey v.

Maricopa Cnty., 693 F.2d 896 (9th Cir. 2012)
must

follow

litigants").

the

same

rules

of

procedure

("[p]ro se litigants
that

govern

other

Notably, plaintiff "did not confer with the School

District's counsel before filing the second amended complaint" and
her SAC "is not accompanied by a motion explaining the changes to
the complaint."
1(a)

BSD's Supplement to Mot. Dismiss 2; see also LR 7-

("[t]he Court may deny any motion that fails" to specify, with

the first paragraph, that "[t]he parties made a good faith effort
. to resolve the dispute and have been unable to do so; or the
Page 6 - OPINION AND ORDER

opposing party willfully refused to confer"); LR 15(c)

("any party

moving for leave to file an amended or supplemental pleading must
describe the proposed changes" in the accompanying motion) .
Despite

the

aforementioned

consider the SAC,

in the

deficiencies,

interest of

of

Higher

Educ.,

555

F.3d

Court

judicial economy,

proposed amendments were not also futile.
Sys.

the

1051,

would
if the

See Ahlmeyer v.
1055

(9th

Cir.

Nev.
2009)

("futility of amendment alone can justify the denial of a motion
[to amend]").
Beyond

Plaintiff's SAC, however, fails to state a claim.
being

vague

and/or

conclusory,

the

SAC

does

not

articulate the deprivation of a federal constitutional or statutory
right sufficient to sustain a 42 U.S.C. § 1983 claim. 3
concerning
659A.142

her

ADA,

claims,

Rehabilitation Act,

plaintiff

does

not

and

Or.

identify

a

Moreover,

Rev.

Stat.

§

BSD

service,

program, or activity that she was qualified for and denied access
to.

See Ovitsky I, 2013 WL 4505832 at *2-3 (outlining the elements

of a Title II ADA and Rehabilitation Act claims)

3

(citing Lovell v.

The SAC includes an "Access to Administrative Due Process
Hearings" section, in which plaintiff cites to Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), in support of
the proposition that "[t]he Fourteenth Amendment protects the
rights of civil litigants, criminal defendants, and members of
the public to have access to courts." SAC pg. 26.
Because 42
U.S.C. § 1983 cannot be utilized to vindicate rights created by
Title II of the ADA or § 504 of the Rehabilitation Act, this is
the only allegation that identifies an actionable federal
statutory or constitutional right. Vinson v. Thomas, 288 F.3d
1145, 1156 (9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003).
Plaintiff, however, does not refer to any court or administrative
proceeding that she either requested or had a legal right to
participate in and was denied access to, including the September
9, 2013 meeting that she chose not to attend.
The Court notes,
while not dispositive, due process hearings under the
Rehabilitation Act are generally not available to parents in this
context, given that plaintiff does not challenge BSD's assessment
of her son's impairment or the sufficiency of the§ 504 plan.
Page 7 - OPINION AND ORDER

Chandler,

303 F.3d 1039,

1052

Davis, 295 F.3d 890, 895
921

(2003));

see

F.Supp.2d 1286,
associational

also

(9th Cir. 2002),
Glass

1289-92

(9th Cir.

v.

(D.Or.

discrimination

2002);

cert. denied,

Hillsboro

2001)
claims

and Thompson v.

Sch.

538 U.S.

Dist.

1J,

142

(parents do not have valid
under

the

ADA

or

the

Rehabilitations Act if those claims are focused on supporting their
minor child's educational rights).
These shortcomings are attributable, in part, to plaintiff's
claims

that

are based primarily upon BSD' s

alleged failure

to

expediently provide reasonable accommodations for her son's hearing
impairment and accessible communication to him at the September 9,
2013

meeting.

See,

e.g.,

SAC

pg.

16-18.

In

other

words,

plaintiff's SAC is based almost entirely on the rights of a thirdparty.

As this Court previously explained,

however,

plaintiff

lacks standing to pursue claims that are not premised on her own
legal rights or interests, absent express statutory authorization
to the contrary. 4

Ovitsky II,

4

2013 WL 5253162 at *2

(citations

For instance, the Individuals with Disabilities Education
Act ("IDEA") affords parents an independent and enforceable right
to the substantive adequacy of their child's education, which may
be litigated pro se in federal court.
See Winkelman ex rel.
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 533 (2007).
Plaintiff, however, has not alleged facts illustrating her son
was eligible under the IDEA.
See generally SAC, FAC; see also
D.R. ex rel. Courtney R. v. Antelope Valley Union High Sch.
Dist., 746 F.Supp.2d 1132, 1141-42 (C.D.Cal. 2010) ("when related
services and accommodations allow a student to make progress in
the regular education program .
. there is no need for special
education and therefore no eligibility under the IDEA")
(citations and internal quotations omitted).
Further, because plaintiff's son is legally an adult, cases
suggesting that pro se parents have standing to pursue claims on
behalf of their minor child under the Rehabilitation Act or Title
II of the ADA are distinguishable.
See Blanchard v. Morton Sch.
Dist., 509 F.3d 934, 938 (9th Cir. 2007), cert. denied, 552 U.S.
1231 (2008) (under Winkelman, a pro se parent was "a proper
plaintiff [to bring Rehabilitation Act and ADA claims], at least
Page 8 - OPINION AND ORDER

omitted).

Plaintiff's

therefore,

if

he

seeks

plaintiff's complaint,
See 28 U.S.C.
States,

818

§

son

is

over

redress

for

age

the

of

eighteen

injuries

and,

alleged

in

he may proceed pro se on his own behalf.

1654; see also C.E.

F.2d

the

696,

697

(9th

Pope Equity Trust v.
Cir.

1987)

United

("[a]lthough

a

non-attorney may appear in propria persona in his own behalf
[h] e has no authority to appear as an attorney for others than
himself")

(citations omitted).

The Court acknowledges that plaintiff lists her son as a party
in the SAC.

Yet the SAC was clearly authored solely by plaintiff

and bears only her signature.

See SAC pg.

41.

Thus,

the fact

remains that "plaintiff's son has not filed any motion or other
pleading indicating an interest to participate in this lawsuit" and
there is otherwise no indication that he is unable to act as his
Ovitsky II,

own advocate.

2013 WL 5253162 at *2.

Under these

circumstances, plaintiff is acting as an improper representative
for her son.

See Simon v. Hartford Life, Inc., 546 F.3d 661, 664

(9th Cir. 2008).

Accordingly, plaintiff's SAC claims against BSD

insofar as she is asserting and enforcing the rights of her
[minor] son and incurring expenses for his benefit"); but see
J.R. ex rel. W.R. v. Sylvan Union Sch. Dist., 2008 WL 682595, *1
(E.D.Cal. Mar. 10), adopted by 2008 WL 2345103 (E.D.Cal. June 5,
2008) ("Winkelman does not accord these parents the right to
pursue non-IDEA claims on behalf of J.R. because the general rule
remains that a parent or guardian cannot bring an action on
behalf of a minor child without retaining a lawyer") (citations
and internal quotations omitted).
In addition, the central
tenant underlying plaintiff's complaint is that, due to her
auditory processing disorder, others should be required to
communicate with her in accordance with her preferences - i.e.
remotely and in writing.
See, e.g., SAC pg. 37 ("no talking, no
meetings, no phones.
Use relay or email for all
communications").
Yet, based on the record before the Court, it
is questionable whether plaintiff's son requests the same
accommodations or finds the same behavior objectionable.
See,
~' Pl.'s Mot. for Prelim. Inj. Exs., at 3, 8-9.
Page 9 - OPINION AND ORDER

fail both at the pleadings level and as a matter of law.
Regarding John Kitzhaber and Jerry Brown, plaintiff's addition
of these defendants is a misjoinder.

These claims do not arise out

of the same "transaction, occurrence, or series of transactions or
occurrences" as those asserted against BSD in either the FAC or the
SAC

and

no

common

defendants.
against

See

question

Fed R.

of

Civ.

law

P.

or

fact

20 (a) (2).

arises

Plaintiff's

Jerry Brown and John Ki tzhaber in the

alleged

failure

of

the

States

of

as

to

all

claims

SAC concern the

California

and

Oregon,

respectively, to implement "any 911 access policy for deaf who need
to use a form of language that is different from spoken English,"
whereas, as discussed above, plaintiff's claims against BSD relate
to her son's right to reasonable accommodations and her mistaken
belief that the September 9,

2013 meeting was an administrative

proceeding and/or due process hearing.
allowing

plaintiff

to

add

Jerry

SAC pg.

Brown

and

5.

Essentially,

John

Kitzhaber

defendants would result in the initiation of a new lawsuit.
Thomas v.
pg.

7

FV-1,

Inc., Case No.

(D.Or. Aug.

5,

2012)

as
See

6:11-cv-06058-AA, Opinion & Order

(denying plaintiff's motion to amend

where "the proposed amendments arise out of a discrete incident,
depend

on

a

different

legal

theory,

and

involve

a

different

party") .
In addition,

plaintiff's claims against John Kitzhaber and

Jerry Brown suffer from many of the same defects as those raised
against

BSD

namely,

they

cognizable legal theory.
dismiss

an

malicious"

IFP

are

vague,

See 28 U.S.C.

complaint

or "fails to

Page 10- OPINION AND ORDER

sua

state

sponte
a

§

conclusory,

and

1915(e) (2) (B)
if

it

"is

claim on which

lack

a

(court must

frivolous

or

relief may be

granted");
Cir.

see also Lopez v.

2000)

stricken,

(en

bane).

leaving the

For

Smith,

203 F.3d 1122,

these

FAC as

reasons,

1126-27

plaintiff's

the dispositive pleading

SAC
for

(9th
is
the

purposes of BSD's motion to dismiss.
II.

The BSD's Motion to Dismiss the FAC
Plaintiff's

allegations

78-paragraph

against

FAC

BSD:

(1)

contains
BSD

only

four

"unreasonably

factual
delayed

investigating" an incident of alleged assault of plaintiff by her
son in their home;

( 2)

BSD failed to provide "reasonable public

accommodation [to her son] in a timely manner" based on the periods
during which the BSD responded to requests for an AlphaSmart laptop
and an audiologist appointment;

(3) a Relay operator transcribed a

single occurrence of "laughter" during a phone conversation between
plaintiff and a BSD representative; and (4)

BSD does not have an

"ADA enforcement policy in relation to deaf using relay services."
FAC

40, 46-48.

~~

A.

42 U.S.C.

§

1983 Claim

To state a claim under 42 U.S.C.

1983 against a government

§

entity, the plaintiff must allege that:

(1) the conduct complained

of deprived her of an existing federal constitutional or statutory
right; (2) the conduct was committed by a person acting under color
of state law; and (3) a direct causal link between a governmental
policy,

custom,

or

practice

statutory violation.

and

the

alleged

constitutional

or

See West v. Atkins, 487 U.S. 42, 48 (1988);

Ovitsky I, 2013 WL 4505832 at *2-3 (citing Monell v. Dep't of Soc.
Serv.

of

City

of

N.Y.,

436

U.S.

658,

694

(1978)).

A single

constitutional deprivation is generally insufficient to establish
a government practice or custom.
Page 11- OPINION AND ORDER

Christie v. Iopa, 176 F.3d 1231,

1235

(9th Cir.

(9th

Cir.

1999)

1996)).

(citing Trevino v. Gates,
Accordingly,

the

circumstances

governing body may be liable under 42 U.S.C.
circumscribed."

99 F.3d 911,

§

in

918

which

a

1983 are "carefully

Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th

Cir. 1995).
Here, BSD's alleged lack of a written policy relating to Relay
calls

and failure

to investigate plaintiff's

assault

complaint

against her son do not address any constitutional or statutory
deprivations.

Likewise,

a

transcribed

occurrence

of

laughter

during a Relay conversation is inadequate for the purposes of
1983 liability.

§

Plaintiff's remaining allegations impermissibly

relate to BSD's failure to provide reasonable accommodations to her
son.

See Fagone v. Ellison, 2013 WL 314356, *4 (E.D.Cal. Jan. 25,

2013)

(dismissing plaintiff's

son's rights).

§

1983 claim based on alleged harm to

Further, as this Court observed previously, the FAC

does not contain any allegations concerning the existence of a
government policy, custom, or practice that caused a violation of
plaintiff's

rights.

5

See

Ovitsky

I,

2013

WL

4505832

at

*3.

Accordingly, BSD's motion is granted as to plaintiff's 42 U.S.C.

§

1983 claim.

5
Plaintiff attempts to remedy some of these defects via her
response to BSD's motion to dismiss.
See, e.g., Pl.'s Resp. to
BSD's Mot. Dismiss 29-30.
Yet "'new' allegations contained in
the [plaintiff's] opposition motion . . . are irrelevant for Rule
12(b) (6) purposes . . . a court may not look beyond the complaint
to a plaintiff's moving papers, such as a memorandum in
opposition to a defendant's motion to dismiss." Schneider v.
Cal. Deo't of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998)
(citation omitted).
Regardless, even construing plaintiff's
opposition as a supplement to the FAC, because it is nearly
identical to the SAC, dismissal remains appropriate.

Page 12- OPINION AND ORDER

B.

Rehabilitation Act, Title II ADA,

and Or. Rev. Stat.

§

659A.142 Claims
In order to establish a claim of disability discrimination
under Title II of the ADA,
Stat.

§

65 9A. 142,

the Rehabilitation Act,

a plaintiff must allege that:

individual with a disability";
participate

in or receive

( 1)

or Or.

Rev.

she "is an

(2) she "is otherwise qualified to

the benefit

services, programs, or activities";

(3)

of

some public entity's

she "was either excluded

from participation in or denied the benefits of the public entity's
services, programs, or activities, or was otherwise discriminated
against by the public entity"; and (4) "such exclusion, denial of
benefits,

or discrimination was by reason of

[her]

disability."

Thompson, 295 F.3d at 895; Lovell, 303 F.3d at 1052; see also Or.
Rev. Stat.

§

659A.142 (making it unlawful for the state government

or a place of public accommodation "to exclude an individual from
participation

in

or

deny

an

individual

the

benefits

of

the

services, programs or activities . . . or to make any distinction,
discrimination

or

restriction

because

the

individual

has

a

disability"); Quesnoy, 2011 WL 5439103 at *6 (analyzing disability
discrimination claims under Or. Rev. Stat.

§

659A.142 and the ADA

coterminously) .
Plaintiff's FAC states only that she is handicapped within the
meaning of these statutes.

She does not, and cannot, allege that

she is qualified for the benefits sought - i.e. an AlphaSmart and
audiologist evaluation - because she is not a student of BSD.

In

other words, the requested benefits, which were ultimately provided
to her son, arise solely from his right to a free public education.
Additionally, although plaintiff asserts that BSD does not have a
Page 13- OPINION AND ORDER

policy relating to the use of Relay services, she does not allege
that

these

events

caused

a

deprivation

of

her

rights;

to

the

contrary, the FAC indicates that plaintiff was in regular contact
with BSD, both by email and over Relay.

See FAC Exs. C & E; see

also Green v. Tri-Cnty. Metro. Transp. Dist. of Or., 909 F.Supp.2d
1211, 1221 (D.Or. 2012)

(school district cannot be liable under the

ADA for its training policies unless alleged deficiencies in those
policies actually cause a deprivation of rights).
Moreover, a delay in investigating student perpetrated in-home
violence or an isolated incident of laughter, for an unknown reason
by

an

unknown

insufficient

individual,

to

support

during

a

a

Relay

disability

conversation

discrimination

are

claim,

especially since it is unclear from the FAC whether the allegedly
wrongful conduct was attributable to BSD.

In sum, even under the

lesser standard governing pro se pleadings, "vague and conclusory
allegations such as these are insufficient to survive a motion to
dismiss."

Ovitsky I,

2013 WL 4505832 at *4

(citation omitted).

Therefore, the BSD's motion is granted.
III. Appointment of Counsel
Finally,

plaintiff's

counsel is denied.

request

for

appointment

of

pro

bono

Although courts have no authority to compel

counsel to represent indigent plaintiffs in civil cases, they "may
request

an

counsel."
counsel

attorney
28 U.S.C.

"is

to
§

represent

1915(e).

discretionary,

"exceptional circumstances."

not

any

person

unable

to

afford

Nevertheless, the appointment of
mandatory,"

and

reserved

for

United States v. $292,888.04 in U.S.

Currency, 54 F.3d 564, 569 (9th Cir. 1995)

(citations omitted).

In

determining whether a plaintiff has demonstrated the existence of
Page 14- OPINION AND ORDER

exceptional circumstances, the court evaluates the likelihood of
success on the merits and the plaintiff's ability to articulate
claims pro se in light of the case's legal complexity.

Id.

Plaintiff has not established that she is entitled to such
assistance in the case at bar,
silent

as

to

the

likelihood

as her pleadings and brief are

of

success

complexity of the legal issues involved.
Resp. to BSD's Mot. Dismiss.
reveals that,

on

the merits

or

the

See generally FAC; Pl.'s

An independent review of the record

for the reasons discussed above,

warrants appointment of counsel.

Thus,

neither element

plaintiff's request

is

denied.
CONCLUSION

BSD's motions to strike the SAC and dismiss the FAC (docs. 78,
93)

are GRANTED.

As

a

result,

judgment against Jerry Brown
quash ineffective service

plaintiff's motion for

(doc.

(doc.

98),

Jerry Brown's motion to

99), and John Kitzhaber's motion

for joinder in BSD's motion to dismiss
moot.

default

(doc.

103)

are DENIED as

Any motion to amend the FAC is due within 20 days of the

date of this opinion and must be filed in accordance with this
Court's orders, as well as the federal and local rules of civil
procedure; failure to do so will result in automatic denial of that
motion and dismissal of this lawsuit with prejudice.
IT IS SO ORDERED
Dated this

..,

3 e-t;f February 2014.
Ann Aiken
United States District Judge

Page 15- OPINION AND ORDER